TaxTMI 
TaxTMI 
2017 (7) TMI 1085
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....g Circle Officer on phone, who also arrived at the spot, he apprehended a person and made search of him in accordance with Section 50 of N.D.P.S. Act, who disclosed his name Santosh Kumar Gupta and 7 plates of Charas wrapped in polythene with 11 paper sachets were recovered from a polythene in his right hand, with recovery of a sum of Rs. 450/- from right hand pocket of his pant and upon weighing, the weight of all plates and sachets of Charas was found to be 2 Kg., upon which he was taken into custody in accordance with rules." Upon investigation the charge-sheet was submitted and charges under section 20 of N.D.P.S. Act were framed against accused-appellant, from which he denied and demanded trial. 3. In order to prove the charges against the accused-appellant the prosecution produced as many as 5 witnesses and after examination of 1 court witness, the statement of accused was recorded under section 313 Cr.P.C. After affording the appellant an opportunity of defence evidence and hearing the arguments of learned counsel for the parties, learned Additional Sessions Judge/Special Judge found the sole accused-appellant to be guilty and convicted him for the offence under section 20 ....
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....and by allowing the appeal, the appellant is entitled for an order of acquittal. 7. Per contra, learned A.G.A. with special assistance of Shri Sanjay Kumar Singh Advocate, learned standing counsel for Narcotics Bureau supported the impugned judgment and order and contended that the prosecution has successfully proved the charges against appellant beyond reasonable doubt; that the proceedings of search and sampling etc. were completed in accordance with law in presence of a gazetted officer, the Circle Officer and there is nothing to show any tampering with the sample of recovered material; that there was no irregularity in taking sample and no inordinate delay in sending the sample for chemical analyzation; that the appeal has been filed with false and incorrect allegations and is liable to be dismissed. 8. Upon hearing the learned counsel for the parties and perusal of record as well as the record of court below (of Special Sessions Trial No. 93 of 2014 State v. Santosh Kumar Gupta summoned in this appeal), I find that as per F.I.R./Recovery Memo, on 01.09.2014, the first informant Sub Inspector Arvind Singh was on patrolling duty alongwith Constables Ajay Yadav and Vipin Singh ....
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....e from right platform or left platform" at page 7 he has stated that "the weight was taken with measurements of weight of the denomination of 1kg, 1/2kg, 200gms., 100gms. and 50 gms. and that the 7 plates were carrying a weight of 1750 gms. and the 11 sachets were of 250 gms. total 2kg. and that the weight of the paper sachets was not taken separately rather weight of all of them was taken collectively." He has also stated that "he had taken sample from all the plates and sachets but the fact of sample having been taken from all plates and sachets, does not find place in the recovery memo." He has also stated "that he had put the seal of his name Arvind Singh on the bundle of sample as well as rest recovered material." At page 8 he has admitted that "the recovered material produced before the Court in the form of 7 plates (marked as material exhibit 1 to 7) is wrapped in sealed polythene cover and does not show as if any quantity was ever taken out from these plates [for Sample] and that it is wrong to say that no material was taken from the rest 8 paper sachets produced before the court." PW-5 the Investigating Officer in his statement at page 2 has stated that "upon being asked....
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.....P.S. Act are not attracted in this case. On the other hand, the learned counsel for the appellant has paid reliance on the judgment of Apex Court in 2009 (2) J.I.C. 202 (SC): A.I.R. 2010 (SC) 1785 Union of India v. Shah Alam in which case 'heroine' was recovered from a bag carried by accused and personal search was also conducted but nothing was recovered from personal search, and the Apex Court held that "whenever the personal search is conducted, compliance of Section 50 of N.D.P.S. Act is necessary, irrespective of any recovery from that person." 15. Further in the case of State of Rajasthan v. Parmanand and Another 2014 (2) J.I.C. 136 (SC) in a case where search of bag carried out by the person as well as search of person both were conducted, and the Apex Court held that "the provisions of Section 50 of N.D.P.S. Act are applicable." 16. In view of the discussions made above, I found that the argument of the respondent that in view of law laid down in the case of State of Himachal Pradesh v. Pawan Kumar 2005 (52) A.C.C. 710 the provisions of Section 50 are not attracted has no force and the prosecution has failed to comply with the mandatory provisions of Section 50 o....
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.... and 8 sachets, they were sealed separately, and only 3 sachets were sealed as sample. The PW-3, Circle Officer has stated in his cross examination that sample was taken from all the 7 plates and 11 sachets but he does not remember as to how much pieces were taken for sample. It is also noteworthy that the bundle received after chemical analyzation when opened before him in the court, he admitted that it does not contain 18 pieces rather contains only 2 pieces." 20. It is pertinent to mention that if according to the first informant and Circle Officer sample was taken from each of the 7 plates and 11 sachets, there ought to have been (7+11) total 18 pieces of 'Charas' one each from 7 plates and one each from 11 sachets. PW-1 the first informant has admitted at page 8 of his statement on oath that 21. The above evidence on record shows that sample was not taken from each of the 7 plates and 11 sachets, rather only 3 sachets were treated and sealed as sample, which may not represent the entire quantity of material allegedly recovered from the accused-appellants, and on the basis of the chemical analyzation report with a finding of Charas therein, it may not be contended tha....
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....edly sealed with the seal of the name of Arvind Singh S.I. was ever sent for chemical analyzation." 23. In the circumstances possibility of tampering with recovered material or otherwise sending some other material for chemical analyzation may not be ruled out and the chemical analyzation report may not represent the alleged recovery. The prosecution has failed to prove that the sample of same material, which was allegedly recovered from the accused-appellant, was sent to Forensic Lab and was found to be Charas and to accused-appellant may not be held guilty of possessing even 49 gms. of Charas, as found by Forensic Lab. 24. In the case of Vijaysinh Chandubha Jadeja v. State of Gujarat 2011 (1) SCC 609, the Five Judges Bench of Apex Court has held that: "Insertion of sub-section 5 and 6 to Section 50 of N.D.P.S. Act does not obliterate mandate of Section 50 (1) to inform the suspect of his right to be taken before gazetted officer or Magistrate. Concept of "substantial compliance" is not applicable to Section 50- however, information may be given either orally or in writing. Failure to comply with Section 50 would (1) cause prejudice to accused (2) render recovery of illici....